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Scottish Court of Session Decisions >>
Earl of Breadalbane, &c. v Sinclair, &c. [1687] Mor 10522 (22 July 1687)
URL: http://www.bailii.org/scot/cases/ScotCS/1687/Mor2510522-037.html Cite as:
[1687] Mor 10522
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The Lords advised the action of spuilzie pursued by the Earl of Breadalbane and John Campbell his son, against Sinclair of Dunbaith, Dumbar of Hempriggs, &c. that they had poinded some mares and cows for a debt of Breadalbine's, though John Campbell had a disposition to them, and compeared at the market-cross of Thurso in Caithness, and offered to depone on the verity of his disposition; which the messenger refused to accept, because, having required him also to depone, whether the said disposition was for onerous causes, (being from a father to his son,) or if it was simulate, only to stop and obviate poindings, he refused to make faith, alleging the messenger had no power to put such interrogatories to parties, but they behoved to be tried in a declarator, reduction, or other ordinary action? The Lords found the messenger's refusing to take his oath on the disposition was a spuilzie. But it were fit that the Lords, for clearing the lieges, would determine the point, how far a messenger's power may reach in trying the simulation of all such dispositions produced before them; else all poindings on the production thereof may be stopped. See Spuilzie.
Fol. Dic. v. 2. p. 93. Fountainhall, v. 1. p. 469.
